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STRANDS OF JUSTICE Do DNA databanks infringe on defendants' rights? July 17, 1998 |
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Questions asked
in this forum:
If fingerprints are not invasions of privacy, why would DNA samples? Are they any constitutional problems with DNA evidence? Will DNA sampling result in genetic determinism? How much can we trust DNA evidence? Does DNA evidence favor the prosecution or the defense?
NewsHour Backgrounders
July 10, 1998:
Betty Anne Bowser reports on DNA identification and its impact on criminal investigations.
A state-by-state breakdown of legislation regarding DNA databanks.
Browse the NewsHour's coverage of law.
Outside Link
A speech by head of the FBI's Combined DNA Index.
The Online NewsHour asks:
Does DNA forensic technology favor the prosecution or the defense, or is it simply a tool that can be used by both sides?
Dr. Paul Ferrara of the Virginia Division of Forensic Sciences responds:
Forensic DNA testing favors the criminal justice system. If a defendant is innocent, the DNA results can exonerate him/her. If guilty, DNA results can include him/her as a possible contributor. In some cases it will do neither; In a rape case, e.g., DNA results may demonstrate that a foreign (to the victim) DNA profile is present in the vaginal swab and is consistent with the suspect. But that does not by itself establish guilt of rape; the issue then may be the matter of consent.
DNA evidence simply provides the triers of fact with the most informative and potentially probative evidence upon which they can rely.
Mr. Barry Sheck of the Benjamin Cordozo Law School responds:
DNA is simply a tool that can be used by either side. The benefits to defendants who have been convicted and subsequently exonerated are obvious. However, the benefits to individuals who were suspects but eventually not accused, or had cases dismissed before trial based on DNA testing is most impressive. Pre-trial elimination of suspects who were charged, or were about to be charged, have occurred thousands of times since 1989, the year that marks the advent of DNA testing. In fact, the FBI alone has excluded over 2,600 primary suspects in sexual assault cases.
Equally plain is the benefit DNA testing can provide to prosecutors. Indeed, I like to think that when the primary suspect is eliminated, and that primary suspect was innocent, that is a benefit to the prosecution as well as the defense.
Mr. Benjamin Keehn, a Boston defense attorney, responds:
In general, DNA forensic technology, like all forensic technology, favors the prosecution, because the prosecution has vastly greater resources than do individual criminal defendants -- the vast majority of whom are indigent -- to actually make use of that technology. In this regard, we should be wary of law enforcement blandishments regarding the utility of DNA for those criminal defendants who are innocent. While the government is spending literally millions of dollars on the creation of DNA data banks, individual defendants who claim they can prove through DNA that they have been wrongfully convicted must fight tooth and nail to find someone who will even listen, much less pay for the cost of testing the DNA which is relatively inexpensive, and then presenting it in court, which is very expensive. Meanwhile, the actual utility of DNA data banks for solving crimes that would otherwise have gone unpunished is very much open to debate. Virginia, for instance, has had 20 "hits" out of 10,000 prisoners whose DNA has been seized and registered. Is it worth suspending the constitution in order to solve 20 crimes, knowing also that there can be no "cold miss" correlate to the "cold hit"? Even if it is agreed that DNA registration will enhance law enforcement, in our society, unlike many, the swift and efficient detection of crime is simply not the overriding criterion for permissible governmental action. If it were, we logically would require universal DNA registration at birth. Is that what we want? If not, then how can we justify the genetic registration of one group, prisoners, without paving the way for the registration of other "at risk" groups, such as welfare recipients, the mentally ill, or children who are wards of the state?When Hitler attacked the Jews, I was
not a Jew, therefore, I was not concerned.
And when Hitler attacked the Catholics, I
was not a Catholic, and therefore, I was
not concerned. And when Hitler attacked
the unions and the industrialists, I was
not a member of the unions and I was not
concerned.Then, Hitler attacked me
Pastor Martin Niemoller (1892-1984), upon his release in 1945 from the concentration camp at Dachau, Germany.
and the Protestant church
and there was nobody left to be concerned.
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